THE QUEEN ON THE APPLICATION OF HOWE v (CLAIMANT) [2004] EWHC 362 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
[2004] EWHC 362 (Admin)Case No Case No. C0/2025/2003Venue Royal Courts of Justice Strand, London WC2
Between
THE QUEEN ON THE APPLICATION OF HOWE(CLAIMANT)SOUTH DURHAM MAGISTRATES' COURT(DEFENDANT)THE CROWN PROSECUTION SERVICETHE LAW SOCIETY(INTERESTED PARTIES)
Before
Lord Justice RoseMr Justice David ClarkeMR CP MITFORD (instructed by Messrs Hewitts Solicitors, 21 Dalton Way, Newton Aycliffe OL5 4DJ) appeared on behalf of the CLAIMANTTHE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTEDMR S DODDS (instructed by CPS Durham) appeared on behalf of the INTERESTED PARTY (CPS)MISS J COLLIER (instructed by the Law Society) appeared on behalf of the INTERESTED PARTY (The Law Society)Date 13 February 2004
[1].MR JUSTICE DAVID CLARKE: This is an application for judicial review of the decision of the South Durham Magistrates sitting at Darlington on 30th January 2003, by which they granted two witness summonses in connection with the forthcoming summary trial of the claimant, Christopher Howe, for offences of driving whilst disqualified and without insurance.[2].The witness summonses were issued on the application of the Crown Prosecution Service. They were issued pursuant to section 97 of the Magistrates' Courts Act 1980, which so far as material reads as follows:
"Where a justice of the peace for any commission area is satisfied that any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence at the summary trial of an information or hearing of a complaint by a magistrates' court for that commission area and that that person will not voluntarily attend as a witness or will not voluntarily produce the document or thing, the justice shall issue a summons directed to that person requiring him to attend before the court at that time and place appointed in the summons to give evidence or to produce the document or thing."
[3].The background to the Crown Prosecution Service's application for these summonses was as follows. Evidence in their possession was that on the day in question two police officers were on duty on the B1278 road near Sedgefield when they saw a vehicle which they said was driven by this claimant, Christopher Howe. They lost sight of it, but their inquiries led them to a particular address where they found that the vehicle was parked.[4].The claimant was later interviewed about the driving on that occasion, but he made no reply. He declined to comment on the question whether he was a disqualified driver; the evidence being that a Christopher Howe was disqualified from driving for three years on 7th February 2000. No admission to that effect was forthcoming from this claimant either in that interview or in any other way, or at any later stage. He never admitted that he was the Christopher Howe who had been disqualified. That produced a gap in the potential prosecution case against him arising out of this driving. This gap has been referred to in the skeleton argument and elsewhere as the "Heaviside issue", a reference to the decision of this court in R v Derwentside Justices ex parte Heaviside (1995) RTR, 384. It is necessary for the prosecution to prove when prosecuting for driving whilst disqualified that the defendant before the court was the person disqualified from driving on the earlier occasion. "Legal professional privilege was not just an ordinary rule of evidence but a fundamental condition on which the administration of justice as a whole rested, since it was based on the principle that a client should be able to consult his lawyer in confidence and without fear that his communications would be revealed without his consent, because otherwise he might hold back half the truth." "It is in my judgment important to remind oneself of the well established purpose of legal professional privilege, which is to enable a client to make full disclosure to his legal adviser for the purposes of seeking legal advice without apprehension that anything said by him in seeking advice or to him in giving it may thereafter be subject to disclosure against his will."[21]So I turn to the question whether the issue of the summons involves an infringement of the claimant's rights under Article 6. The Article reads, as far as material, as follows: 1. . In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights:... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."[27]Maurice Kay J (as he then was) when granting permission to apply in this case for judicial review on 30th July 2003 said:
"There are curiosities about the case. If the claimant is the man who was convicted on 7th March 2000, it seems to us that Mr Wager ought not to be representing him to the extent that he is seeking to advance the case denying that reality. If on the other hand he is not the man who was convicted on 7th March 2000, in some ways one would have thought that the claimant and Mr Wager might have some enthusiasm for providing evidence in a formal document under the Criminal Justice Act signed by Mr Wager to that effect; it no doubt would be seriously considered by the Crown Prosecution Service in relation to the future of the prosecution. In one sense, therefore, we are a little mystified by the turn of events." "
In this case we must consider the function and nature of the documents with which we are concerned. The record of time on an attendance note, on a time sheet or fee record is not in my judgment in any sense a communication. It records nothing which passes between the solicitor and the client and it has nothing to do with obtaining legal advice. It is the same sort of record as might arise if a call were made on a dentist or a bank manager. A record of an appointment made does involve a communication between the client and the solicitor's office but is not in my judgment, without more, to be regarded as made in connection with legal advice. So to hold would extend the scope of legal privilege far beyond its proper sphere, in my view. It is submitted on behalf of the applicant that the doctrine is to be applied on an all or nothing basis, that either a document is wholly entitled to legal professional privilege or none of it. That in my judgment is not so. The proposition is not in my view made good by Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529. That case concerned a continuous memorandum. It was held that a party could not waive privilege in relation to one part of it without waiving privilege in relation to the whole. The good sense of that ruling is, I think, obvious since to permit such a course would raise an obvious risk of misleading the reader. It therefore was held, and properly held in my view, that a party cannot pick and choose. But that is not the position here. Production is sought of nothing relevant to legal advice of the subject matter of legal advice. Any such reference in, for example, an attendance note can be covered up, blacked out or obliterated. The Crown have made it as clear as can be from the outset that they have no wish to go behind the veil which protects the exchanges between the applicant and his professional adviser with regard to his personal affairs. That is something to which the Crown are not entitled and it is something which they do not seek. In my judgment, subject to any necessary obliteration, blacking out or covering up, there is nothing in the documents to which the Crown seek access to which legal professional privilege can apply."[38]I would, therefore, uphold the justices' decision to issue the witness summonses. "The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."

Cited in 4 later judgments